Public Defense

The New Miranda warning

Posted on November 10, 2010
I thought this post on the Marquette University Law School faculty blog by Michael Cicchini nicely summed up recent SCOTUS Fifth and Sixth Amendment jurisprudence pretty well. In conformity with these cases, here is how we should be giving the familiar Miranda warning if we really want to be honest:I first have to read you these rights before you tell me your side of the story, okay? First, you have the right to remain silent...

Greene named Chief Judge

Posted on November 09, 2010
Here is a press release announcing that Richard Greene has been named by the KSC to succeed Gary Rulon as Chief Judge of the Kansas Court of Appeals.

New Mexico has a state constitution

Posted on November 09, 2010
In State v. Rivera, No. 31,656 (N.M. Oct. 19, 2010), the New Mexico Supreme Court recently considered the application of the private-search doctrine under the federal and state consitutuions:In this case, a private citizen is alleged to have opened a sealed container that contained a toolbox holding several opaque bundles...

KU Law to examine state constitutional law

Posted on November 09, 2010
Here is a news release that KU will host a symposium on state constitutional law this Friday November 12, 2010. Apparently there is up to 6.3 hours of free CLE available. Relevant topics include privacy rights, criminal procedure, search and seizure, and dual sovereignty.

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December 2010 KSC docket

Posted on November 06, 2010
Here are the criminal cases on the KSC docket for December 6, 2010. These summaries are based on the issues listed in the briefs filed and may not very accurately or fully describe the actual issues in the cases. I recommend you review the briefs yourself if you would like more details...

It's Justice Caplinger

Posted on November 01, 2010
Here is the Governor's press release announcing the appointment of Judge Nancy Caplinger to the Kansas Supreme Court to fill the seat of Chief Justice Davis, who passed away this last summer.

A Richardson win

Posted on October 29, 2010
Randall Hodgkinson won in State v. Gordon, No. 102,386 (Kan. App. Oct. 22, 2010), obtaining a new trial in a Sedgwick County felony fleeing and eluding prosecution. The case was largely controlled by State v. Richardson (blogged about here), which made it clear that when a crime relies on a predicate felony (like felony fleeing and eluding relies on underlying "moving violations"), the district court must instruct the jurors on the elements of the underlying offenses and specify the alleged violations...

Kansas Defender applies for COA

Posted on October 14, 2010
Here is a Topeka Capital-Journal article stating that 17 Kansas lawyers have applied for the Court of Appeals position that will be created by the Jan. 10 retirement of Chief Judge Gary W. Rulon. As the article states, Randall Hodgkinson (of this blog) is one of the attorneys applying for the position...

Petitions for Review granted September, 2010

Posted on October 13, 2010
On September 14, 2010, the KSC granted several defendants' petitions for review: State v. Tully, No. 92,764 (April 13, 2007) (unpublished)Issues presented: 1. Prosecutorial misconduct - prosecutor's improper comment on defendant's post-arrest silence 2...

Kansas cases at SCOTUS

Posted on October 02, 2010
Here is a Topeka Captial-Journal article reporting on Kansas cases through history that have been decided at the SCOTUS. It is interesting to look at the cases, both thoses listed and some that are not, that have come from Kansas. I teach my students that every big criminal procedure case was just some regular case at some time...

Statute means what it says

Posted on September 29, 2010
Janine Cox won in State v. Urban, No. 98,956 (Kan. Sept. 24, 2010), affirming Judge Bornholdt's dismissal of a Johnson County aggravated escape from custody prosecution. Ms. Urban was on bond and as a condition of bond, had to reside at the Johnson County Residential Center...

Three judges nominated for Kansas Supreme Court

Posted on September 29, 2010
Here is the press release announcing that COA judges Nancy Caplinger and Tom Malone and district judge Merlin Wheeler (from Emporia) were selected by the Supreme Court Nominating Commission and forwarded to the governor.Here is coverage in the Wichita Eagle...

ADO's silver anniversary

Posted on September 22, 2010
From Joyce Black, ADO Administrative Specialist:Once upon a time (August, 1985) there was a little office born from need and necessity. The office started out with two clerical staff and five attorneys. There were few computers, and lots of ?yellow tablets? full of briefs and motions (yes ? the clerical staff typed briefs from handwritten pages and a few from dictaphones)...

The lonely Kansas Constitution

Posted on September 22, 2010
I was impressed and glad to see this month's copy of the Journal of the Kansas Association for Justice (September 2010) included an article by Daniel E. Monnat and Paige A. Nichols titled "The Loneliness of the Kansas Constitution." Here is an excerpt from the introduction:Today the original handwritten, eight page document [the Kansas Constitution] lies safely in the archives of the Kansas State Historical Society...

Eyewitness ID instruction under attack

Posted on September 20, 2010
Here is a nice article from the Wichita Eagle highlighting the recent oral argument in State v. Mitchell, No. 99,163. In Mitchell, the KSC is considering whether a jury should be instructed to give special consideration to witness certainty in determining whether an eyewitness' testimony is accurate...

October 2010 KSC docket

Posted on September 16, 2010
Here are the criminal cases on the KSC docket for October 25-29, 2010. These summaries are based on the issues listed in the briefs filed and may not very accurately or fully describe the actual issues in the cases. I recommend you review the briefs yourself if you would like more details...

New article on false confessions

Posted on September 15, 2010
Here is an article from the April, 2010 Stanford Law Review which highlights the phenomenon of false confessions and specifically shows how most false confessions include surprisingly rich, detailed, and accurate information. The article suggests reform to all facets of the criminal justice system in an effort to control the contamination of confessions by improper interrogation techniques...

Lawsuit challenges judicial nomination process

Posted on September 11, 2010
Here is an AP article that describes a lawsuit filed in federal court that seeks an injunction against the Supreme Court Nominating Commission from filling the vacancy on the Kansas Supreme Court. The lawsuit claims that Kansas employs an unconstitutional method for replacing judges, in part because it gives too much power to attorneys...

Cumulative judicial and prosecutorial misconduct requires new trial in Jessica's Law case

Posted on September 03, 2010
Carl Folsom won in State v. Kemble, No. 100,824 (Kan. Sept. 3, 2010), obtaining a new trial in a Sedgwick County aggravated indecent liberties prosecution. The KSC reversed due to a combination of judicial miscondcut and prosecutorial misconduct.The KSC reviewed the transcript in detail to evaluate the judge's interaction with a child witness...

No property interest in jail booking documents [NOT FINAL]

Posted on September 03, 2010
Washburn student intern Joshua Mikkelsen and I won in State v. Rodriguez, No. 102,449 (Aug. 20, 2010), vacating a Seward County forgery conviction. The prosecution stemmed from Mr. Rodriguez allegedly signing jail intake documents with a false signature...

Acquittal in Ford County

Posted on September 03, 2010
Steve Cott got acquittals this week in State v. Fulton, ending a Ford County kidnapping, rape, and aggravated sodomy prosecution.

IAC finding upheld [NOT FINAL]

Posted on September 03, 2010
About two years ago, we blogged about Alice White and the Defender Project getting state habeas relief for a client after a fairly long and arduous process (detailed here). The Court of Appeals just affirmed the habeas grant in Saleem v. State, No. 101,629 (Kan...

Article on defendant released after habeas win

Posted on September 03, 2010
Here is a Wichita Eagle article reporting on the recent release of Nathaniel Swenson after 11 years in prison. We blogged about the case about three years ago here, when Michael Whalen obtained a remand for evidentiary hearing in Mr. Swenson's habeas case...

Thirteen apply for KSC

Posted on September 01, 2010
Here is the Court's press release announcing that thirteen persons have put there names forward for nomination to the Kansas Supreme Court to fill Chief Justice Davis' seat. Interviews this week with selection by the Governor later this fall.

13 apply for Kansas Supreme Court

Posted on September 01, 2010
Here is the KSC's press release stating that 13 Kansas attorneys have applied for the vacancy on the Supreme Court that was created last month by the retirement of the late Chief Justice Robert Davis. The Supreme Court Nominating Commission will interview applicants for the position on September 27 and 28, so be sure to get any input on any of the applicants in as soon as possible.

Jessica's Law conviction reversed based on coercive police interview

Posted on August 31, 2010
Ryan Eddinger won in State v. Stone, No. 100,076 (Kan. Aug. 20, 2010), obtaining a new trial in a Sedgwick County ?Jessica?s Law? prosecution. The KSC reversed Stone?s conviction for aggravated indecent liberties with a child, holding that a tape recording of the police interrogation of him should not have been admitted into evidence...

Upward departure set aside

Posted on August 30, 2010
Jessica J. Travis won in State v. Horn, No. 97,872 (Kan. Aug. 20, 2010), vacating an upward durational depature sentenced imposed in a Johnson County sex offense prosecution. The state charged Mr. Horn with several sex offenses and also filed a motion alleging an aggravating factor that would support imposition of an upward durational departure sentence...

Misconduct and ineffective assistance of counsel requires new trial [NOT FINAL]

Posted on August 30, 2010
Michael Whalen won in In re Ontiberos, No. 100,362 (Kan. App. Aug. 27, 2010), obtaining a new trial in a Sedgwick County Sexually Violent Predator Act proceeding.There is a lot in this decision, including recognition of a statutory right to effective assistance of counsel in a SVPA proceeding and procedural guidance for such a claim...

Possible change to elected district judges in NE Kansas

Posted on August 26, 2010
Here is a Leavenworth Times article reporting that the judicial selection method will be up for decision for district judges in the First Judicial District (covering Leavenworth and Atchison Counties). They currently have a nonpartisan selection method, but a petition has been submitted to change to partisan election...

Washington has a state constitution

Posted on August 25, 2010
In State v. Tibbles, No. 80308-1 (Wash. Aug. 5, 2010), the Washington Supreme Court held that the exigent circumstances doctrine didn't apply to a warrantless car search under its state constitution. The circumstances routinely occur in Kansas--officers stop a car and smell marijuana...

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